Health Law Daily Wrap Up, QUALITY OF CARE—DAB DECISIONS: ALJ upholds CMS penalties for SNF accident prevention failures, (Jun 12, 2026)

By WK Editorial Staff

The facility failed to prevent foreseeable hazards by leaving a treatment solution and unauthorized medications accessible, violating accident-prevention standards for cognitively impaired residents.

An administrative law judge (ALJ) for the HHS Departmental Appeals Board (DAB) upheld penalties against a skilled nursing facility (SNF), concluding that the facility did not meet the accident-prevention standard under 42 C.F.R. § 483.25(d), a provision that requires nursing facilities to keep resident environments “as free of accident hazards as possible” and to provide adequate supervision and assistive measures. The ALJ granted summary judgment in CMS’s favor, emphasizing that the undisputed facts demonstrated a failure by the facility and its staff to fulfill its obligations to protect two residents (Remington Transitional Care of San Antonio , DAB No. CR6733, Doc. No. C-21-1043 (July 18, 2025)).

State agency survey. Following a survey by the Texas Health and Human Services Commission, completed on May 6, 2021, CMS determined that the facility was not in substantial compliance with Medicare program requirements. Based on the state agency’s findings regarding two separate incidents involving cognitively impaired residents, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Free of Accident Hazards / Supervision / Devices) cited at scope and severity level J. CMS imposed a per-instance civil money penalty of $18,105 and a denial of payment for new admissions from June 3, 2021, through June 8, 2021.

Hazards. The first incident arose when staff left an open container of Dakin’s Solution—a wound treatment solution—on a resident’s bedside table. The resident, who had severe cognitive impairment and required supervision with eating and drinking, drank three sips of the solution through a straw placed in the bottle. Although the resident did not suffer lasting medical harm, the judge found that the facility’s conduct violated its fundamental obligation to prevent accidents.

The second incident involved unsecured prescription medications found in another cognitively impaired resident’s room. The medications had not been ordered by the facility and were left accessible on a bedside surface, despite a physician’s directive that the resident was not permitted to self-administer medications.

Forseeability. The ALJ rejected the facility’s argument that the wound treatment solution posed minimal risk because of its chemical composition. Instead, the ALJ focused on the foreseeability of the event and the facility’s own treatment of the substance as hazardous. The product label expressly warned against ingestion and instructed that the container remain closed when not in use. The facility’s staff followed those warnings after the incident by contacting poison control, underscoring that they understood the risk. By leaving the solution open and accessible to a cognitively impaired resident, the facility created a foreseeable hazard the regulation is designed to prevent.

Policies. Regarding the unsecured prescription medication, the ALJ emphasized the facility’s failure to follow its own policies governing medication management. Those policies required staff to identify medications brought into the facility, ensure they were properly authorized, and secure them to prevent unauthorized access. The facility did none of those things. It did not identify how the medications entered the room, did not remove them, and did not enforce its own prohibition on bedside storage without appropriate authorization and assessment.

Duty of care. In both incidents, the residents’ cognitive impairments heightened the facility’s duty of care. The ALJ repeatedly stressed that foreseeable risks must be evaluated in light of a resident’s specific vulnerabilities. Leaving hazardous substances or unsecured medications accessible to cognitively impaired individuals is inherently dangerous, regardless of whether harm occurs.

Evidence. Once CMS establishes a prima facie case based on survey findings, the facility must present evidence demonstrating that it took all reasonable steps to prevent the identified risks. The facility in this case did not meet that burden. Because the material facts were undisputed, the ALJ concluded that no evidentiary hearing was necessary. The facility’s own submissions confirmed that hazardous substances were left accessible, medications were not secured, and internal policies were not followed.

Penalty. CMS assessed an $18,105 per-instance civil monetary penalty and imposed a brief denial of payment for new admissions. The ALJ found these sanctions appropriate given the seriousness of the deficiencies and the facility’s noncompliance with the regulations.

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